Case Number: BC629761 Hearing Date: June 11, 2018 Dept: 2

Defendant’s Motion to Compel Inspection of Plaintiff’s Cellular Telephone Camera and Associated Electronic Storage; Request for Sanctions, filed on 3/23/18 is DENIED.

Defendant did not inform the court that Plaintiff did respond to the inspection demand served on 3/14/18. Opposition, Ex. 8. Defendant’s claim that Plaintiff has “failed to respond to this Inspection Demand whatsoever” is false. Declaration Guze, ¶ 5.

If Defendant believed the 3/14/18 responses to be improper, and that Plaintiff should provide further responses and inspection, Defendant was required to schedule an Informal Discovery Conference with the court. Parties must participate in an IDC before a Motion to Compel Further Responses to Discovery will be heard unless the moving party submits evidence, by way of declaration, that the opposing party has failed or refused to participate in an IDC. Standing Order Re Personal Injury Procedures, Central District, ¶ 13, filed 4/16/18.

Defendant argues in Reply that he had not yet received the 3/14/18 responses at the time the motion was filed, and that he had no obligation to wait. However, defense counsel signed the motion and his declaration on 3/22/18 and filed the motion on 3/23/18, approximately nine days later. It does not stand to reason that the responses were delivered more than one week after they were served.

Defendant’s counsel provides “metadata” of the firm’s document handling program, which does not verify when the responses were delivered by the post office as opposed to being entered into the firm’s program. Reply, Ex. E.

While Defendant’s counsel believes he had no “obligation to wait,” he did have an obligation to meet and confer with Plaintiff when Plaintiff’s counsel sent the email confirming the parties’ agreement that did not comport with Defendant’s counsel’s understanding. Opposition, Ex. 7. Defendant further had an obligation to meet and confer once having received Plaintiff’s responses and deemed them inadequate, and he should have taken this motion off calendar, so as not to mislead the court in the belief that Plaintiff failed to respond “whatsoever.” Guze Declaration ¶ 5; Cal Code Civil Procedure § 2031.310.

Defendant was required to set an Informal Discovery Conference, not merely ignore that Plaintiff served responses. Parties must participate in an IDC before a Motion to Compel Further Responses to Discovery will be heard unless the moving party submits evidence, by way of declaration, that the opposing party has failed or refused to participate in an IDC. Standing Order Re Personal Injury Procedures, Central District, ¶ 13, filed 4/16/18.

Plaintiff served responses to the inspection demand on 3/14/18, consistent with the agreement that she believed the parties made, that responses were due on 3/14/18. Motion Ex. 8. Defendant’s claim that they agreed only to an inspection date is illogical as Plaintiff is required to also respond to the Request for Production of Documents, and make necessary representations as to whether or not Plaintiff is able to comply or whether there are objections. Cal Code Civil Procedure § 2031.220. Defendant does not indicate when he expected to receive the responses.

Plaintiff explained she did not receive the inspection demand served in December, but offered to respond by 3/14/18. Defendant sent the inspection demand by email on 2/28/18, which supports Plaintiff’s version of the events. Opposition, Ex. 5, Declaration of Sorensen, paragraph 9-12.

Plaintiff is entitled to an award of sanctions of $1,200 against Defendant, who has not shown substantial justification for this motion, for failing to meet and confer at the time Plaintiff explained her version of the agreement, and failing to meet and confer once having received Plaintiff’s responses to the inspection demand. Cal Code Civil Procedure §2031.310(d).

Failure to meet and confer is an abuse of the discovery process for which monetary sanctions may be imposed. Code Civ. Proc., § 2023.010(1)

Moving party is ordered to give notice.